majority"> OlaeksoN, I.

The defendants set up actionable fraud or deceit to rescind the alleged contract. The only serious contention or assignment of error of plaintiff (4) is that the court below in its charge omits any reference to scienter.

The charge complained of was as follows: “It is necessary for them to show to you by the greater weight of the evidence before you can answer the issue in their favor, first, that such representations were made to them by Mr. Butler, and second, that these representations were false; third, that they relied upon these representations as being true; fourth, relying upon them to be true they purchased the instrument and executed the contract.”

*173 In Whitehurst v. Ins. Co., 149 N. C., p. 276, tbe Court says: “And it is not always required, for tbe establishment of actionable fraud, tbat a false representation should be knowingly made. It is well recognized with us tbat, under certain conditions and circumstances, if a party to a bargain avers tbe existence of a material fact recklessly, or affirms its existence positively, when be is consciously ignorant whether it be true or false, be may be held responsible for a falsehood; and this doctrine is especially applicable when tbe parties to a bargain are not upon equal terms with reference to tbe representation, tbe one, for instance, being under a duty to investigate, and in a position to know tbe truth, and tbe other relying and having reasonable ground to rely upon tbe statements as importing verity. Modlin v. R. R., 145 N. C., 218; Ramsey v. Wallace, 100 N. C., 75; Cooper v. Schlesinger, 111 U. S., 148; Pollock on Torts, 7 ed., 276; Smith on tbe Law of Fraud, sec. 3; Kerr on Fraud and Mistake, 68.” Unitype Co. v. Ashcraft, 155 N. C., p. 63; Machine Co. v. McKay, 161 N. C., p. 584; Simpson v. Tobacco Growers, 190 N. C., 603; Dunbar v. Tobacco Growers, 190 N. C., 608; McNair v. Finance Co., 191 N. C., 710.

In Pollock on tbe Law of Torts (1923), 12 ed., p. 283-4, tbe rule is well stated: “To create a right of action for deceit there must be a statement made by tbe defendant, or for which be is answerable as principal, and with regard to tbat statement all tbe following conditions must occur: (a) It is untrue in fact, (b) Tbe person making tbe statement, or tbe person responsible for it, either knows it to be untrue, or is culpably ignorant (tbat is, recklessly and consciously ignorant) whether it be true or not. (c) It is made to tbe intent tbat tbe plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it. (d) Tbe plaintiff does act in reliance on tbe statement in tbe manner contemplated or. manifestly probable, and thereby suffers damage.”.

In some cases tbe scienter is presumed from tbe transaction where tbe seller was tbe inventor. Unitype Co. v. Ashcraft, supra. Where tbe seller was tbe manufacturer of tbe article. Peebles v. Guano Co., 77 N. C., p. 233.

In tbe Unitype Co. case, supra, p. 67, tbe Court says: “It appears in this case tbat tbe false statements were made by tbe inventor of tbe machine, who must be supposed to have been fully informed as to its good and bad qualities and who must, therefore, have made tbe representations knowing them to be false. It was so expressly held in Peebles v. Guano Co., 77 N. C., 233. Tbe plaintiff in this case is a corporation and tbe manufacturer of tbe machine, and therefore what is said in tbe Peebles case is clearly pertinent to tbe facts as *174 presented in the record: ‘It is said that the jury have not found that the representations were fraudulent, but only that they were false, and without fraud, the action cannot be maintained. If we consider the action as for the deceit, this objection would be unanswerable if the defendant was the seller only, and not also the manufacturer of the article. It is difficult to conceive how a manufacturer of guano can make a representation concerning the substance of which it is composed, which is false, and not also fraudulent, in the sense that it was knowingly false. If his servants employed in the manufacture, on any occasion by negligence, or wilfully, omitted to put in the valuable ingredients without the knowledge or connivance of the manufacturer, it would free his false representation from immorality, but he must in law be held equally liable for the acts of his servants, and he cannot be held innocent of a moral fraud, if after being informed of the omission he seeks to take advantage of it by demanding for a spurious and worthless article the price of the genuine one. We think that on the facts found by the jury the plaintiff was entitled to damages.’ ”

In Pollock, supra, p. 289, it is said: “The Supreme Court of the United States said (in Lehigh Zinc and Iron Co. v. Bamford (1893), 150 U. S., 665, 673), that ‘a person who makes representations of material facts, assuming or intending to convey the impression that he has adequate knowledge of the existence of such facts, when he is conscious that he has no such knowledge,’ is answerable as if he actually knew them to be false — which is admitted everywhere- — -and then went on to say that vendor or lessor may be held guilty of deceit by reason of material, untrue representations ‘in respect of his own business or property, the truth of which representations the vendor or lessor is bound and must be presumed to know.’ ”

In the instant case the plaintiff, the seller of the Schubert piano, through his agent Butler, was not the maker.

It may be noted that defendants in their answer allege scienter “all of which was well known to the plaintiff’s agent when he made these representations to the defendants and the said representations were made with the knowledge of their falsity,” etc.

From the record the evidence was sufficient to be submitted to the jury.

For the reasons given, there must be a New trial.

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